903 F.

2d 1333

Charles G. KOCH; and David H. Koch, Plaintiffs-Appellees,

v.
William I. KOCH, Defendant-Appellant.
No. 89-3207.

United States Court of Appeals,

Tenth Circuit.
May 23, 1990.
Rehearing Denied June 15, 1990.

Clifford L. Malone (Larry D. Spurgeon, of Adams, Jones, Robinson &

Malone, Chartered, Wichita, Kan., Roger D. Stanton & Mark D.
Hinderks, of Stinson, Mag & Fizzell, Overland Park, Kan., John C.
Aisenbrey, of Stinson, Mag & Fizzell, Kansas City, Mo., and Joseph F.
Ryan, of Lyne, Woodworth & Evarts, Boston, Mass., with him on the
briefs), of Adams, Jones, Robinson & Malone, Chartered, Wichita, Kan.,
for defendant-appellant.
Robert L. Howard (James M. Armstrong & Timothy B. Mustaine, with
him on the brief), of Foulston & Siefkin, Wichita, Kan., for plaintiffsappellees.
Before TACHA and SETH, Circuit Judges, and KANE, District Judge.*
TACHA, Circuit Judge.

This appeal is from an order granting summary judgment in favor of plaintiffs

Charles G. and David H. Koch and decreeing specific performance of a written
contract by which the parties agreed to convey certain real estate to plaintiffs
and an interest in a valuable gold coin collection to defendant William I. Koch.
The district court granted specific performance of the contract, dismissed
defendant William Koch's counter-claim seeking money damages for alleged
fraudulent misrepresentations with respect to a separate stock purchase
agreement, and established the value of the coin collection and stock to be
transferred under the contract. Defendant William Koch appeals on the grounds
that the district court erred in granting summary judgment where there was a

genuine issue of material fact regarding the alleged fraudulent inducement by

plaintiffs of the real estate and coin transfer contract. Defendant William Koch
further contends that the district court erred in establishing the value of the real
estate and coins to be transferred under the court's equitable power rather than
according to the terms of the contract. We affirm.
I.
2

Plaintiffs Charles and David Koch and defendant William Koch entered into
two contracts. One contract was for the purchase and sale of a substantial
amount of stock in Koch Industries, which had been previously held by
defendant William Koch. That contract has been the subject of several lawsuits
by defendant William Koch, one of which is currently pending in this circuit. In
the second contract, signed on the same day as the purchase and sale
agreement, defendant William Koch agreed to transfer to the plaintiffs, Charles
and David Koch, his interest in family owned real estate in Wichita, Kansas, in
exchange for plaintiffs transferring to defendant their interest in a valuable
family gold coin collection.

When defendant William Koch refused to perform under the real estate and
coin contract, plaintiffs Charles and David Koch sought specific performance,
invoking the district court's diversity jurisdiction. Defendant William Koch
counterclaimed, alleging fraud in the inducement and sought both damages and
rescission of the real estate and coin contract. The district court granted
summary judgment in favor of plaintiffs Charles and David Koch on the
counterclaim and ordered specific performance of the real estate and coin
contract. As part of the specific performance decree, the district court ordered
an appraisal of the coin collection and real estate, and when the appraisers
differed on the amount of the valuation, the court decreed the final appraised
value. Defendant William Koch appeals from the district court's denial of his
counterclaim and its handling of the appraisal procedure.II.

Defendant William Koch contends that he refused to perform because he was

fraudulently induced to enter into the real estate and coin transfer contract by
fraudulent misrepresentations made with respect to the stock purchase and sale
agreement that was executed on the same day by the same parties. We disagree.

We review grants of summary judgment on the same basis as the district court,
determining whether there is any disputed issue of material fact and, if not,
whether the substantive law was correctly applied. Osgood v. State Farm
Mutual Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). We agree with the
district court that the contract for the transfer of the real estate and gold coins

should be specifically enforced and that none of defendant William Koch's

allegations with respect to the stock purchase and sale agreement bar
enforcement of this contract. The real estate and coin transaction is an entirely
separate and distinct transaction from the stock purchase and sale agreement.
Cf. Blakesley v. Johnson, 227 Kan. 495, 608 P.2d 908, 913 (1980) (holding
stock purchase agreement severable and independent from employment
agreement where both contained in same contract form). We will not look
beyond the four corners of the contract where the parties have reduced their
agreement to written form and the document is unambiguous on its face. Short
v. Wise, 239 Kan. 171, 718 P.2d 604, 606 (1986); Brown v. Lang, 234 Kan.
610, 675 P.2d 842, 846 (1984). But see Hall v. Mullen, 234 Kan. 1031, 678
P.2d 169, 174 (1984) (two agreements executed at same time will be construed
together). Nothing on the face of the contract states a contingency or reliance
upon the stock purchase and sale agreement. See Blakesley, 608 P.2d at 913.
The real estate and coin contract is clearly supported by adequate consideration.
Cf. State ex rel. Ludwick v. Bryant, 237 Kan. 47, 697 P.2d 858, 861 (1985);
Shepard v. Dick, 203 Kan. 164, 453 P.2d 134, 138 (1969). We affirm the
district court's holding that the real estate and coin contract is a complete and
unambiguous document which does not refer in any way to any other agreement
and therefore is not dependent on the stock sale agreement.
6

We further note our support for the concern expressed by the district judge that
defendant William Koch has attempted to raise similar allegations in several
actions brought in separate courts. We do not look with favor on these multiple
efforts to raise the same issues in separate forums.

III.
7

After dismissing defendant William Koch's fraudulent inducement defense, the

district court decreed specific enforcement of the real estate and coin
agreement. The court required both plaintiffs Charles and David Koch and
defendant William Koch to submit appraisal reports on the real estate and coin
collection involved here. After submission of these reports, the district court
established the value of both the real estate and the coin collection. The district
court did not, however, utilize the appraisal procedure established in the
contract. The contract required that the appraiser appointed by the plaintiffs and
the appraiser appointed by the defendant would select a third appraiser and that
the three appraisers would then establish the appraised, or contract, value of the
property involved. Defendant William Koch now contends that the district
court should have followed the contract procedures in setting the appraised
values of the coin collection and real estate. We disagree.

We review the district court's decree of specific performance for abuse of

discretion. See McKinney v. Gannett Co., 817 F.2d 659, 670-71 (10th
Cir.1987). We hold that the district court did not abuse its discretion in
decreeing specific performance and setting the final appraised value. At the
summary judgment hearing, counsel for defendant William Koch told the court:

What I'm suggesting, Judge, is that you have the power as the Court sitting in
equity to resolve [the difference in appraised values] in a fair fashion and as you
deem appropriate. There are a number of ways you can go about doing it and
you know them as well or better than I do, sir. You can do as you started out
talking about following the contract. Say, "No, I don't want to do that. Let them
both submit something, I will decide what it is worth." You can do that. You
have that power as the Court sitting in equity. What I'm urging you to do, sir, as
the Court sitting in equity is to do that which is fair, and it is not fair, Judge, to
tell a man that a one-sixth ownership interest in $4,175,000.00 worth of the
property is $145,000.00. That's not fair. What I'm asking the Court to do is use
the Court's judicial temperament, judgment, cognizance and resolve this matter
in a fair fashion, and if you do that, then I think we will have come a long way
here, sir, we really will.

10

Record, vol. II, at 18-19 (transcript of summary judgment hearing, June 5,

1989) (emphasis added). The district court specifically asked the parties if they
needed to have the appraisers present at the summary judgment hearing.
Neither party requested their presence. Counsel for defendant William Koch
then urged the district court to resolve the matter itself and not to follow the
contract. We will not now hear the defendant appear before this court and
attack the district court's exercise of equitable discretion in the very manner
urged by defendant below. In any event, district courts retain substantial
discretion in ordering specific performance, and the district court did not abuse
its discretion under the circumstances of this case. See generally McKinney,
817 F.2d at 670-72; El Paso Natural Gas Co. v. Western Bldg. Assocs., 675
F.2d 1135, 1142 (10th Cir.1982) (specific performance granted under general
equity principles); Shepard, 453 P.2d at 137 (specific performance rests in
sound discretion of court).

IV.
11

We find no error in the district court's grant of summary judgment on defendant

William Koch's counterclaim and hold that the district court did not abuse its
discretion in ordering specific performance. Accordingly, the judgment of the
district court is AFFIRMED.

The Honorable John L. Kane. Jr., District Judge, United States District Court
for the District of Colorado, sitting by designation